Aboriginal title and private law rights: Saik’uz First Nation and Stellat’en First Nation v. Rio TInto Alcan Inc.

The Saik’uz First Nation and Stellat’en First Nation appealed a judgment striking their action for nuisance and breach of riparian rights in relation to the operation of a hydroelectric dam by Rio Tinto.

The appellant First Nations had commenced an action against Rio Tinto in private and public nuisance and for breach of riparian rights. Rio Tinto brought an application for summary judgment based on the defence of statutory authority, or alternatively, an order striking the pleadings for failing to disclose reasonable causes of action. The Chambers Judge declined the application for summary judgment, but struck the appellant’s pleading on the basis the Nations had to prove their aboriginal rights and title in an action against the Crown before bringing private law claims for harm to those rights against private parties.

On appeal, the BC Court of Appeal reviewed the appellant’s pleading to determine if it disclosed any reasonable claims. The court found that on the pleadings, material facts were sufficiently pleaded to ground the private law claims. With respect to the riparian rights, the court found it was arguable that Aboriginal title could include riparian rights and that therefore, the Water Act, RSBC 1996, c 483 vesting all fresh water rights in the Province could constitutionally be inapplicable.  However, with respect to the appellant First Nation’s riparian rights claims that were grounded in their interests in reserve lands, the court found that the reserves were created after the province had already abolished all riparian rights for landowners. As a consequence, the court held that when reserve lands were subsequently transferred from the Province to the Federal government, they could not have included riparian water rights.

The BC Court of Appeal disagreed with the chambers judge that Aboriginal rights and title had to be proven as a prerequisite to bringing private law claims. The court reasoned that a prerequisite was not justified because Aboriginal rights and title exist prior to any declaration of recognition. The court’s declaration goes towards identifying the exact nature and extent of the title or rights. The court noted that Aboriginal peoples, like any other litigants, should be permitted to prove any rights they need in order to succeed in their claim against another party. To set a different standard for Aboriginal peoples lacked any supporting principle and could also be argued to be inconsistent with the principals of equality under the Charter of Rights and Freedom.

Saik’uz First Nation and Stellat’en First Nation v. Rio TInto Alcan Inc., 2015 BCCA 154

Lisa C. Fong, Michael Ng, and Siddharth Akali